Today will be the long-awaited release of the Special Counsel report. (I will be in New York doing analysis for CBS and BBC). District Court Judge Reggie Walton however did not wait for the release of the report or the press conference planned by Attorney General Bill Barr for the morning. Walton made a surprising statement in court on Tuesday criticizing Barr. Walton objected that “The attorney general has created an environment that has caused a significant part of the public … to be concerned about whether or not there is full transparency.” Walton did not explain what precisely Barr did to create such public doubts, but the comments appeared immaterial to the merits. A few days ago, we discussed another federal judge attacking President Trump at an awards ceremony. Walton’s comments are not nearly so problematic but they were unfortunate and untimely in my view.
Walton was presiding over a hearing on a Freedom of Information Act suit demanding access to a report detailing the findings of special counsel Robert Mueller. The issue is a legal one separate from the judge’s view of how the Attorney General is proceeding on the rollout of the redacted report. Indeed, Walton denied a request from BuzzFeed to issue a preliminary injunction requiring the Justice Department to release Mueller’s report by Thursday.
It was an obvious and easy ruling to make under the circumstances. The question is why the court felt it was necessary to reach outside of the confines of the case to make a comment that clearly would cause a frenzy in the media. Moreover, I am at a loss as to what the court was referencing. Barr is proceeding along the well-established lines. He cannot release the unredacted report given restricted information from the grand jury as well as classified information and information from ongoing investigations. Indeed, Deputy Attorney General Rod Rosenstein has publicly defended Barr’s actions.
This is not the end of the Buzzfeed case but the criticism of Barr seemed strikingly premature and unsupported. Today we will see the redacted report and we can teach more conclusions on the outcome of the redaction review. However, we need the courts to maintain a greater distance from the unfolding commentary over the controversy until an actual case or controversy is presented in court under Article III.
We also discussed the statements of Judge Ellis in the Manafort case as highly problematic as well as the comments of Judge Sullivan in the Flynn case. Such extraneous commentary creates concerns over the objectivity of the courts in dealing with matters of great public concern.